United States v. Zucca

PETITIONER:United States
RESPONDENT:Zucca
LOCATION:

DOCKET NO.: 213
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Second Circuit

ARGUED: Jan 24, 1956 / Jan 25, 1956
DECIDED: Apr 30, 1956

Facts of the case

Question

  • Oral Argument – January 25, 1956
  • Audio Transcription for Oral Argument – January 25, 1956 in United States v. Zucca

    Audio Transcription for Oral Argument – January 24, 1956 in United States v. Zucca

    Earl Warren:

    Number 213, United States of America versus Ettore Zucca.

    Mr. Bishop.

    J.F. Bishop:

    The Government brought this case to this Court because it felt that there had been a very serious misconstruction of a statute below.

    The statute in question is Section 340 of the Immigration and Nationality Act of 1952.

    The Government had instituted proceedings under that Section against the respondent to revoke his naturalization because of a long series of willfulness representations and material concealments by which he had obtained that naturalization in the first place.

    The Government commenced the proceedings by filing a complaint.

    In that complaint the text of the misrepresentations was set forth at length and there was also a section in which the Government alleged there had been good cause for the institution of these proceedings.

    But the judge felt that in addition there had to be an affidavit of good cause.

    Now very briefly the Government feels that there is nothing in the statute that requires this additional affidavit.

    The Government feels that this section does two things.

    First, let me correct my — let me insert a remark here.

    The Government’s position is that the only reference in this section to an affidavit of good cause and I’ll read the statute in a moment, is in the part in which an affirmative duty is imposed on the United States Attorneys to act when they might not act otherwise.

    That’s where the affidavit of good cause appears.

    The Government feels that on proper construction this section does two things.

    First, it says it shall be the duty of United States Attorneys will institute proceedings for denaturalization and it says when that duty arises upon an affidavit of good cause.

    And the second part of the section separated in a different part of the sentence as the part of it — I mean an entirely different paragraph as to the rest tells what the benefits for the defendants are to be.

    That is it affirmatively and clearly sets forth a 60-day notice provision.

    Now that is the Government’s feeling about it and perhaps the best way to get at that is to present the statute before the Court and I’ll take the liberty of reading it and I’ll try to read it without any inflection and without any slanting if I can do so.

    It’s presented in the Government brief at page 2, if you have that before you and I read, “It shall be the duty of the United States Attorneys for the respective districts upon affidavit showing good cause therefore to institute proceedings in any court specified in subsection (a) of this — subsection 310 of this Title, in the judicial district in which the naturalized person, citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling a certificate of naturalization on the ground that such order and certificate of naturalization were procured by concealment of a material fact or by willful misrepresentation.”

    Now there are asterisks in the Government’s copy and what follows in those asterisks there is some language as to the effect of the revocation and a special provision concerning contempt of court as an additional ground for revocation.

    And then that next sentence as you can observe as a provision for the defendants that are not residing in the United States and then there is the separate paragraph b and again I start reading that’s on page 3.

    (b) the party to whom was granted the naturalization alleged to have been procured by concealment of a material fact or by willfulness representation shall in any such proceedings under subsection (a) of this Section have 60 days personal notice unless waived by such party.

    The rest of it I don’t believe I need to read because the contrast of that second part with the first part is now before the Court.

    I have outlined somewhat roughly how this case arose, that is the proceeding was commenced by a formal complaint in which the Government charged the willfulness representations by which the naturalization was originally obtained.

    And the statute —

    Sherman Minton:

    Under this —

    J.F. Bishop:

    Pardon me.

    Sherman Minton:

    Under this section?

    J.F. Bishop:

    That is right.

    That — this is clearly under this Section and I might add also that the 60-day notice that was given and there is no question that the jurisdiction was in the Court of the residence, of the defendant, here.

    Sherman Minton:

    Yes.

    J.F. Bishop:

    The respondent.

    Now, the respondent had these objections to the complaint.

    They were two fold.

    One of them is before this Court, the other is not.

    The first one is not.

    But I have to mention it because the respondent added it to the statement of facts in his brief so I don’t want to go ahead with the argument without having that here too.

    He contented first that the complaint failed to give fair notice of the Government’s claim and then his second contention was that he had an absolute right to an affidavit of good cause.

    Now that first point was decided against the respondent by a judge who as you know decided for him on the other ground.

    That point isn’t before the Court but since it’s been injected and also since it’s referred to tangentially in another part of respondent’s brief, I feel the Court should have the answer to it that the judge himself made.

    And the best way to do that again is to read from the record.

    He said that there was no lack of detail and here is his language when he talked about the complaint which was filed in this proceeding, I’m reading the judge’s words, record 12.

    I read, “It sets forth the alleged act which made the procurement of defendant’s naturalization illegal and he allegedly concealed and misrepresented facts with what well maybe unnecessary specificity for a civil complaint.

    In view of this it would appear that the defendant is merely saying that a better complaint should have been drawn.

    However it is not the function of this Court to pass on the artistic merits of pleadings,” citing the case.

    The complaint not only gives the defendant fair notice of the Government’s claim, but it also informs him of the alleged facts upon which that claim is based.

    The motion to dismiss the complaint because it is procedurally inadequate is therefore denied.

    And that has not been brought to the Court.

    Now the point is of collateral interest, although we didn’t try to make use of it in our brief.

    We make use of it now somewhat, I would say in retaliation.

    It’s of interest because it shows that the demand for an affidavit clearly doesn’t rest on any need for detail that the respondent was not deprived of any detail here and the judge who had him before his bench could see that very clearly.

    The demand for filing an affidavit in this case rests upon the narrow contention that the statute some how requires it in every case and irrespective of any duplication or additional litigation that it may cause impractical effect.

    Now I do not say that if the statute requires it that he shouldn’t have it, but I do say that there is no lack of detail or extraneous reason to give it to him if he doesn’t have it on the words of a statute which I have just read, which we think it does not.

    Now with respect —

    Sherman Minton:

    Had it — that might — had not be required for another purpose than giving detail?

    J.F. Bishop:

    Yes, and I will deal with that.

    But I’d add a purpose which the Chief Justice probably adverts to is to perhaps add some element of responsibility, I want to discuss that at greater length and I also want to —

    Sherman Minton:

    That’s all right.

    J.F. Bishop:

    — discuss that —

    Sherman Minton:

    Take your time.

    J.F. Bishop:

    — at a later point if I may.

    Now —

    Where is that in (Inaudible)

    J.F. Bishop:

    Pardon?

    (Inaudible)

    J.F. Bishop:

    An Assistant U.S. Attorney and since that is here before us at the moment I want to add that when a complaint is signed by the United States Attorney, under the federal rules of several procedure number 11, we have cited that in our brief, that in itself is an affirmation of good cause.

    I don’t know how you could get a better word.

    But again I am not arguing it on any theory that he is getting something just as good.

    I am arguing that there is no extraneous reason to give it to him, if it doesn’t get on the statute.

    This was a complaint filed by the United States Attorney.

    There is a verification of it by the Assistant United States Attorney.

    And if we were discussing in on just as good basis, I have no doubt that everything that’s required would be there.

    Felix Frankfurter:

    Well there is no — no problem of any extraneous reasons other than —

    J.F. Bishop:

    We are construing a statute.

    Felix Frankfurter:

    — other than the compulsion if it beats us of a statue.

    J.F. Bishop:

    Correct.

    That is right.

    Now, with — and that is the point in which the District Judge we felt went astray.

    Now, he held —

    Felix Frankfurter:

    I noticed you leave out the Court of Appeals, they also went — have gone astray.

    J.F. Bishop:

    I will add that with utmost pleasure, because the Court of Appeals here had the case before them I am sure and I’ve examined the briefs.

    And I don’t want to say that their decision because they wrote no opinion.

    It is lacking in consideration but I will charge them with the same errors and manifest omissions, which I am going to present to the Court in a moment in what is supposed to be here a very careful and complete analysis of legislative history.

    Felix Frankfurter:

    But you must or they just — they just under the laws the District Court contended.

    J.F. Bishop:

    They did and that is always a dangerous process in this time —

    Felix Frankfurter:

    Don’t try to discourage if you will.

    J.F. Bishop:

    All right.

    Now, the District Judge whose opinion then is that of the Court of Appeals as well is thinking to the extent that I may summarize it only a little to present it before this Court, I hope I am properly generous about it, was relied preponderantly on the legislative history.

    We do not find in his opinion the hard day labor of looking at the statute and checking its words.

    But we find instead an excursion in the legislative history and the serious of assumptions, the first assumption is that legislative history required the furnishing of an affidavit in every case.

    J.F. Bishop:

    Now, that I am going to deal with when I get to the legislative history.

    But then from that as a springboard he stated that this affidavit must then be filed in court.

    Now that’s an assumption that’s easily to be made by saying that the defendant doesn’t have a chance to check the matter if it isn’t filed in the Court.

    But it does overlook and the District Judge had very little to say about how much additional procedure that involves and the question whether the Congress when it imposes yet another virtually a third bite at the apple of effects would say so in just and aside with this few words inserted in the first part of the statute.

    Now, the Government’s — let me summarize a moment what the Government finds in error in this.

    The first error of course is this business of bypassing the language of the statute itself of which I find no mention in the opinion below to get into legislative history.

    The second of course is in the use made of legislative history —

    Hugo L. Black:

    Which — which language have you referred to —

    J.F. Bishop:

    The district —

    Hugo L. Black:

    — about the by — bypass?

    J.F. Bishop:

    The District Judge.

    Hugo L. Black:

    Which language of the statute do you say they bypassed?

    I understood you to say —

    J.F. Bishop:

    I — I say this that the District Judge did not mention or deal with the contrast of the first part of this statute with the second part.

    The first part before it says institute proceedings that first part which says it shall be the duty of the United States Attorney upon affidavit of good cause to institute proceedings and then after that — after you got into the point where that instituting of proceedings has began then you get to the question of venue and then you get to the provision fully spelled out not parenthetically for a notice.

    It says in this proceeding there shall be a notice.

    It doesn’t say what we and the Government feel and I am paraphrasing now, I am not reading the statute, feel that when the United States Attorney is furnished an affidavit of good cause he has to act and that that was purpose of putting this in.

    Now that is the distinction which isn’t discussed in the opinion below.

    I think it needs very shortly to be discussed when you see such a contrast of language within one section.

    Felix Frankfurter:

    If I understand (Inaudible) Mr. Bishop.

    J.F. Bishop:

    Yes.

    Felix Frankfurter:

    (Inaudible) United States as to why he could if he say, upon an affidavit showing good cause and therefore, that — that affidavit is required in order to be — the U.S. Attorney to begin proceeding?

    J.F. Bishop:

    I say that that affidavit is the way of making the United States Attorney act when he won’t act of his own accord.

    But that is what that is for.

    The requirements of the proceeding are in the second part.

    Felix Frankfurter:

    Well that looked forward that contemplates that somebody making that affidavit is your suggestion —

    J.F. Bishop:

    If they —

    Felix Frankfurter:

    — U.S. Attorney (Inaudible) to come outside — without — come in and explain like an affidavit?

    J.F. Bishop:

    No.

    My suggestion is just the reverse that in most cases the United States Attorney can act on his own —

    Felix Frankfurter:

    Yes.

    I understand that but —

    J.F. Bishop:

    — findings and information.

    Felix Frankfurter:

    — but the affidavit.

    Who is contemplated in making the affidavit to move with your inserted company from without —

    J.F. Bishop:

    Right.

    Felix Frankfurter:

    — or in respect of what was said when the original inadequacy, Department of Labor.

    J.F. Bishop:

    Anyone who —

    Felix Frankfurter:

    I can’t believe it’s funny, really funny.

    The U.S. Attorney has to get an affidavit from another official of United States Government before he moves.

    That’s funny.

    J.F. Bishop:

    Sounds funny to me, too.

    Felix Frankfurter:

    Well, but it doesn’t sound funny that he should make an affidavit as the basis of core action, that doesn’t sound funny.

    Maybe redundant but it doesn’t — isn’t funny.

    J.F. Bishop:

    Well, what I’m — what I mean by that is this that the United States Attorney is charged and in actual practice carries on the duty of denaturalization proceedings, the usual routine as this Court knows from the maker argument is that the actual exploratory investigations starts over in the Bureau of Immigration and Naturalization.

    They send memorandum, they sent affidavits, they send anything that he requires for going ahead.

    No doubt about that.

    But the U.S. Attorney is the one who normally can start these things and he does not have to be pushed into it, he does not require an affidavit.

    And this particular peculiar portion of the first part of statute is only for the instance were he will not act and yet action should be taken and should be compelled and that is what that is for.

    Felix Frankfurter:

    That is when he’s pushed from without.

    J.F. Bishop:

    That is the case.

    Felix Frankfurter:

    Well, how do you know if another statue, one other statute in which the Congress has indicated that a lethargic or indifferent or unoccupied U.S. Attorney must be moved into an action by violation of a criminal law of United States by somebody who without making an affidavit under this movement he must start a proceeding.

    One other case in the — this is in the whole U.S.– in the U.S. (Inaudible) I should be the private (Inaudible)

    I don’t know but (Voice Overlap) —

    Sherman Minton:

    Is it — is this a criminal proceeding?

    J.F. Bishop:

    This is not criminal proceeding.

    Felix Frankfurter:

    No, no, no.

    We have —

    J.F. Bishop:

    It’s a civil proceeding.

    Felix Frankfurter:

    What it contemplates if somebody has heard (Inaudible) that is naturalization (Inaudible) and then he goes in and complains to the U.S. Attorney about it and the U.S. Attorney says, “Why did I take your word for it?

    Felix Frankfurter:

    You better make an affidavit.”

    And that Congress wrote this prerequisite into this statute as the basis of having him start proceedings, that’s your position?

    J.F. Bishop:

    That’s my position.

    Felix Frankfurter:

    And you — I asked you to produce another statute in which the Congress of the United States safeguarded carelessness on the part of the U.S. Attorney by requiring some (Inaudible) complaining to make an affidavit.

    J.F. Bishop:

    I will give a short answer to that and then a longer answer.

    The first answer of course is quick.

    I have not explored all the other statutes and my word on whether there are any others would not be helpful although in the mechanics of the tax laws I would not be surprised to find something very close to that.

    Felix Frankfurter:

    You know, but —

    J.F. Bishop:

    But —

    Felix Frankfurter:

    (Inaudible) they just strike this out.

    J.F. Bishop:

    I will not end the extent of information, Mr. Justice Frankfurter but I will say this, that my not knowing about it is meaningless before this Court but I do want to go on to the longer part of the answer.

    I don’t know of any other statute that had such a legislative history as this one in which there was such choice comment about the lassitude and the crookedness of United States Attorneys as the Section in which this originated.

    The opinion of this Court in Bindczyck stated the whole flagrant annoys some history of the origin.

    So that my saying that I don’t know of any other case in which U.S. Attorneys had to be brought at a time is particularly meaningless in the face of the way this statute originated.

    There was such suspicion, I’ve just — was reading in the old Congressional Globe the other evening such remarks about the probable use of these statutes and the lack of use of them has appalled me just as a matter of language.

    Felix Frankfurter:

    I did my —

    J.F. Bishop:

    So that that differentiates this statute and that’s fine

    Felix Frankfurter:

    I don’t think so.

    I can match that forward proceeding at which I have also committed to know because I have the rights of it, isn’t it?

    J.F. Bishop:

    Yes.

    Felix Frankfurter:

    I can match that with the (Inaudible) proceeding about the lassitude and indifference and corruption regarding custom (Inaudible)

    J.F. Bishop:

    Well, then you have added another authority to my board.

    However —

    (Inaudible)

    J.F. Bishop:

    Pardon me.

    Tom C. Clark:

    (Inaudible)

    J.F. Bishop:

    I am not familiar with that statute but I will thank Mr. Justice Clark for another addition to my board.

    That board —

    Hugo L. Black:

    May I ask you one question —

    J.F. Bishop:

    Surely.

    Hugo L. Black:

    — as to the — I’m sure it’s my fault, but I haven’t quite understood your argument (Inaudible)

    I understand that you say that the first part of Section 340 which requires an affidavit before instituting a proceeding is better to push him from the outside but there’s something else in this statute which authorizes the institution without that affidavit, where is that?

    What language do you approach it?

    J.F. Bishop:

    That is not necessary because he has that authority already.

    That is cited in our brief.

    Hugo L. Black:

    You’re going the general thought —

    J.F. Bishop:

    What?

    Hugo L. Black:

    The general authority —

    J.F. Bishop:

    That is —

    Hugo L. Black:

    — of the first — the first —

    J.F. Bishop:

    That’s right, he — in other words and let me add just one little aside here on so that I can clean this up in a second.

    In the — that general authority was considered in existence even at the time when this enactment first appeared in 1906.

    There are citations both in the respondent’s brief and ours in which there was a general practice of acquittal proceedings by which the U.S. Attorneys acted.

    I might also refer to Mr. Justice Frankfurter’s opinion in Bindczyck for that.

    So that what we have is a power in the United States Attorneys, but we do have a peculiar provision at the beginning of it to make the United States Attorneys act and I will show in the history why they felt there had to be these compulsions and I have had the addition of at least one similar incidence apparently which I am sorry that I have not explored here before us, an analogy.

    Now, the — I am still on the point of my objection to the opinion below the error, the first part of course is the failure to distinguish, the clean break in the first part of this statute from the second part.

    The second part uses language that no one would have any trouble with, it says, as I read, that the defendant shall have 60 days notice.

    That’s the way to say it.

    But you don’t say that if an affidavit of good cause is filed it shall be the duty of the United States Attorney to act.

    Now I know I am transposing the words there somewhat but that’s the pitch.

    Now, the second objection that I have in the opinion is really a better personal one and that is that this has been an attempt to make an excursion into a legislative history which I don’t think was necessary on the language and it was left badly incomplete.

    Felix Frankfurter:

    Before you move on to this, I just wanted —

    J.F. Bishop:

    Yes —

    Felix Frankfurter:

    — Mr. Bishop — I understand your transposition, the way you read it as good as — is there — is there any documentation for reading it that way other that the argumentative explanation we’ll give?

    J.F. Bishop:

    Yes, sir —

    Felix Frankfurter:

    Where is that upon the affidavit showing good cause therefore, meaning, it shall be the duty of the United States Attorney, meaning that it shall be his duty if and when an affidavit is submitted.

    That’s (Voice Overlap) —

    J.F. Bishop:

    There is documentation for that in our view of the legislative history.

    Now, may I say to the Court, I’m going to start momentary comment on legislative history here and before I say anything about legislative history, may I make the profession of modesty on the subject.

    We all know that legislative history is a difficult and dangerous thing.

    J.F. Bishop:

    We know that even though the law and current decisions in 1952 when this was reenacted were almost unanimously to the effect that I have just stated that this is not a jurisdictional requirement.

    I am not saying that every legislator in Congress read that history or even adverted to the matter.

    That is — I’m not that naïve but so long as we are challenged as to what I consider here to be the normal way of reading this language and are thrown into a legislative history, we have to operate as a profession of faith I suppose that the legislators acted in accordance with the decisions of that time perhaps or in reference to them, even though they’ve never read them and also with reference to the history although very few people I find have ever explored this to the beginning as it should have been.

    Felix Frankfurter:

    (Inaudible) that judicial history when it was reenacted?

    J.F. Bishop:

    Very much so, I — let me digress again for a moment and because I may not get to it.

    In 1952 when this statute was enacted, here was the judicial history.

    There was a case, Schwinn in 1940 which I consider of the highest authority because I mean ranking them somewhat is likely to have been heard of, because it had gotten to this Court.

    The Schwinn case we have cited in the brief was a case in which an affidavit was filed with the complaint but there was an objection in the Court of Appeals level that they had to — that they had to furnish that affidavit to the U.S. Attorney.

    And it was squarely presented to the Court of Appeals and it was squarely decided we think, not just dictum by the Court of Appeals that this is not a jurisdictional requirement.

    We’ve cited the language in our brief.

    I don’t want to take time for it now, but that case came before this Court.

    Now, the Court of Appeals was either so persuasive or the logic of it when one looks at the statute I don’t know why, but the defendant in that case didn’t even bring the argument about the affidavit to this Court, so that you are properly entitled to say that this Court did not pass upon the matter.

    But nevertheless this Court did sustain the revocation and I think that this Court with its occasional proclivity for acting sua sponte and in view of the seriousness with which this Court has looked at all revocation cases, I don’t think this Court missed the point.

    I think the point was there to see especially for anyone who looked at the lower court briefs and this Court affirmed a revocation in which there had been an issue below and in which the Court of Appeals’ opinion which was before this Court squarely said this affidavit is not a jurisdictional requirement, period.

    Stanley Reed:

    I didn’t understand what affidavit it was.

    J.F. Bishop:

    The affidavit of good cause that we are arguing about now.

    Stanley Reed:

    That was what —

    J.F. Bishop:

    That — that —

    Stanley Reed:

    That was filed in the trial court?

    J.F. Bishop:

    It was filed with the complaint but the objection below was as it’s contented in the District Judge here below that a — that the — that it’s a matter that has to be furnished to the United States Attorney before he can institute the proceedings so that the case I think is quite —

    Stanley Reed:

    Who executed this affidavit?

    J.F. Bishop:

    In the Schwinn case?

    Stanley Reed:

    Yes.

    J.F. Bishop:

    I don’t recall.

    Stanley Reed:

    I don’t mean the individual but was it the United States Attorney or was it someone that advised him on it?

    J.F. Bishop:

    I don’t recall but it was an affidavit of good cause.

    It was not furnished to the United States Attorney.

    May I make a guess?

    I suppose it was just the usual Immigration Department affidavit which comes in along with the papers to get the action started in our procedures.

    But I do not state that from knowledge.

    J.F. Bishop:

    I did read the record and have —

    Stanley Reed:

    But I don’t understand why if that affidavit was there it was necessary to consider this problem at all.

    J.F. Bishop:

    Because —

    Stanley Reed:

    Or — or — (Voice Overlap) —

    J.F. Bishop:

    — the affidavit being filed in the proceedings is not enough.

    If you agree with the District Judge below the United States Attorney has to be furnished with an affidavit to start the proceedings.

    That isn’t remedy by filing it later in the proceedings.

    Stanley Reed:

    It was filed during the trial but that it —

    J.F. Bishop:

    With the complaint.

    With the complaint but it was added to the complaint later.

    I can go into greater detail on that because —

    Stanley Reed:

    All right.

    Felix Frankfurter:

    Had — having it fine, isn’t the question.

    I mean —

    J.F. Bishop:

    Well, this whole process is a matter of cutting it fine if they —

    Felix Frankfurter:

    All I’m saying is — all I’m saying is unless the statute of limitation comes into play, if the U.S. Attorney files the complaint without an affidavit on, what is the date, on January 24th, is it?

    January 24th without an affidavit assuming just by (Inaudible) and three months — and the case goes on its present way and two months later, or three months later, or X months later, somebody says hello, there’s no affidavit with any file, unless the statute of limitation is (Inaudible) you might as well say it’s instituted as of the moment that the affidavit was filed.

    J.F. Bishop:

    Well, I think that’s a logical statement but this thing is not being handled logically.

    I would say — in fact one of the complaints of the respondent here is that this is a — and we’re sympathetic to that, that is that starting at denaturalization proceeding, just starting it, getting the wheels in motion is something that’s a very serious business.

    Felix Frankfurter:

    Well, I agree with you but the fact that he didn’t start it two months ago doesn’t mean he can’t start it two months later.

    J.F. Bishop:

    Well, that is — that is saying that what is claimed here to be a jurisdictional requirement can be repaired after jurisdiction should have attached.

    Felix Frankfurter:

    I am not saying that.

    I am saying that — I can be thrown out of Court for want of jurisdiction, of some jurisdictional defect, and then repair the defect by meeting the jurisdictional requirement a little later.

    J.F. Bishop:

    If it is a jurisdictional requirement that is to appear sometime in the proceeding but if, as respondent contends here, it’s a jurisdictional requirement peculiarly addressed to nothing being started, not even papers being filed.

    They speak of the damage to reputation and all that.

    Felix Frankfurter:

    Well, (Voice Overlap) —

    J.F. Bishop:

    Then —

    Felix Frankfurter:

    (Inaudible)

    J.F. Bishop:

    What’s that?

    Felix Frankfurter:

    They are filed — they started when the affidavit was signed.

    Felix Frankfurter:

    And after (Inaudible) look at the Schwinn case that I’ve been —

    J.F. Bishop:

    Yes I have looked at it and —

    Felix Frankfurter:

    All right.

    J.F. Bishop:

    And there was — there was so much dispute over the affidavit that I cannot conceive of this Court having overlooked without even a caveat, the fact that this proceeding in Schwinn was not started with an affidavit of good cause.

    And if it was brought in later, it would not meet the requirements which the respondents seem to feel is of the essence here.

    Felix Frankfurter:

    But as I understand the petitioner affirmed here on a specific ground, wasn’t it?

    J.F. Bishop:

    I will speak to that point.

    It was — when it specified the ground it was not saying that the Court said nothing about the affidavit.

    What it said was that it said nothing about fraud, there were two grounds in Schwinn and I forgot which it was, illegality or fraud.

    Felix Frankfurter:

    But — but the affirmative — this Court restrict it so, restricted it though explicit and perceptive to a specific ground, isn’t it?

    J.F. Bishop:

    That — the — the specific ground of two but it did not say, as I read it of course, that it said we — we sustain this revocation because of shall we say illegality but we do not say anything about the affidavit.

    The specification of illegality was because there had been quite a bit of brawling about fraud as well, I remember that clearly.

    Felix Frankfurter:

    I don’t suppose —

    J.F. Bishop:

    So that that’s the distinction.

    Felix Frankfurter:

    I don’t suppose it’s secret to you that this Court may at times have differencing of opinion about if it says nothing when it doesn’t have to.

    J.F. Bishop:

    That is not a secret to me.

    Felix Frankfurter:

    All right.

    Earl Warren:

    Mr. Bishop, —

    J.F. Bishop:

    Yes.

    Earl Warren:

    — what’s been — what has been the administrative interpretation of this affidavit portion of the Act, back to the beginning.

    Let’s take it back in 1906 when the Act was —

    J.F. Bishop:

    1907, the Attorney General’s letter you’re speaking to —

    Earl Warren:

    I was thinking of that, yes.

    J.F. Bishop:

    Yes.

    All right.

    Well, I — I will say this.

    We have said perhaps the most eloquent say about that letter by printing in the appendix the whole correspondence of which it was a part.

    That was not an opinion of an Attorney General in formal style.

    It was a haste —

    Earl Warren:

    Informal style?

    J.F. Bishop:

    In formal style in the sense of the published opinions of the Attorney General.

    It — it appears in the correspondence of a — as a quick answer to dispose of a single case.

    I might paraphrase, phrase it in the vernacular by saying that the bureau set over a group of papers asking the district attorney in New Jersey to start something.

    The district attorney couldn’t find the fellow.

    That’s appear — appears on the appendix.

    And along with his objection that he couldn’t find him, he sends back remark also under the statute we should have an affidavit.

    Someone in the Attorney General’s office, (Inaudible) the original says refer to Cooley, writes a letter to —

    Felix Frankfurter:

    Refer to who?

    J.F. Bishop:

    Cooley, C-O-O-L-E-Y.

    Felix Frankfurter:

    (Inaudible) Attorney General.

    J.F. Bishop:

    That’s right.

    Felix Frankfurter:

    (Inaudible)

    J.F. Bishop:

    Yes.

    Felix Frankfurter:

    He administrates for attaining (Inaudible)

    J.F. Bishop:

    Yes.

    I mentioned that though because it was not (Inaudible), the man who had served on the naturalization —

    Felix Frankfurter:

    But Mr. Cooley was different.

    The authority was appropriate on this matter.

    J.F. Bishop:

    I — I have read that.

    Earl Warren:

    Well, would you say then — would you say then that this so-called opinion did not represent the opinion of the Department in 1907?

    J.F. Bishop:

    I would say that it was a hasty interdepartmental disposition of a single question.

    But I also wish to point out that the letter itself is not too clear especially when it’s read in the correspondence.

    It speaks of authority to act, and it speaks of filing an affidavit, though the word ‘filing’ is in there.

    But in the whole context of this correspondence you will note that the Attorney General did not answer the question which was squarely put, is it unlawful to start this proceeding without the affidavit?

    It shows on all sides a quick dealing with the question.

    But let me assume that that 1907 letter is a formal and let’s say that in the seven days of its answer, it was a well considered letter and represented the opinion that time.

    It has not been the administrative practice as a universal matter since.

    Earl Warren:

    When did that start?

    J.F. Bishop:

    Well, I have an example, the Knight case was in 1923, there was no affidavit filed then.

    And that Knight case which we cite said they didn’t have to, it was not jurisdictional so it certainly occurred as early as that.

    Earl Warren:

    Did any —

    J.F. Bishop:

    Now —

    Earl Warren:

    Did any of the Circuits follow the reasoning of this opinion of the Attorney General 1906?

    J.F. Bishop:

    They did until 1927 and then the matter died, and let me — let me condition that too.

    I don’t think the Third and the Fifth did much of a job of following the reasoning of the Attorney General’s letter so much as they did to espouse the fact that in those particular cases they just refused to denaturalize because of a small court error.

    They went to the merits and the matter that — the affidavit part that came in very parenthetically, an examination of those opinions will show very clearly that they were directed.

    That that affidavit talk was thrown in as a make way without any consideration, they didn’t refer to the Attorney General’s letter or anything else.

    They just added that —

    Earl Warren:

    Well, how about the —

    J.F. Bishop:

    — to their opinion on the merits.

    Earl Warren:

    How about the cases in the Eighth Circuit then, the District of Columbia?

    J.F. Bishop:

    The District of Columbia case is the 1912 Cohen case.

    That did nothing but quote the Attorney General’s letter and the text writer who had in turn quoted the Attorney General’s letter and that was the end of it.

    Meanwhile in Knight, the Knight case, it’s apparent that in at least that case, there was no affidavit filed.

    Now let me in order to fill this in a little more frankly, there is no doubt that in great number of cases this affidavit is final and there’s no problem of finding out why and it doesn’t necessarily mean that there’s been any recognition that the Government feels that it has to file because it contested the matter as early as Schwinn in 1940 and in this case it firmly decided not to go on with that.

    As the Court knows (Voice Overlap) —

    Earl Warren:

    By this case you mean this particular case —

    J.F. Bishop:

    The instant case and cases before which are cited in our brief.

    There’s a whole parade of them and they are recent and they represent the position of the department.

    The Court will of course advert to half a dozen reasons why rather than have an argument about something which is usually fairly readily available, you go ahead and file the affidavit.

    There are many reasons for filing it, in the first place the interdepartmental procedure as this Court knows from Minker is to do a very careful job of investigating and to require an affidavit within the department, and the insertion of that affidavit, the use of an affidavit is a very common practice.

    Earl Warren:

    Well, is there any reason —

    J.F. Bishop:

    But the recognition that it has to be filed is not a common practice.

    And the only evidence of such recognition is that 1907 instance which I have not found in any of the manuals or routine establishments.

    I have for instance seen as far back as 1943, a departmental memorandum which clearly said it’s up to each United States Attorney if they want to file the affidavit, they can but they don’t have to citing Schwinn and other cases.

    Earl Warren:

    Is there any reason why an affidavit was not filed here?

    J.F. Bishop:

    What’s that?

    Earl Warren:

    Is there any particular reason why an affidavit was not filed here?

    J.F. Bishop:

    No particular reason except that it does involve this.

    And I may go to this point at the moment, in other words the question is, you have affidavits in these cases, you always have extent — I think it will be conceded that there is extensive investigation.

    J.F. Bishop:

    These things are not vigorously filed.

    Why not go ahead and give it to them?

    Well the answer to that is this and I speak here on what I’ve been told by those at the actual operational levels, that that affidavit which we feel is not required by the statute can be quite a bit of a subject of nuisance, it can involve you in practically a third preliminary round on the facts.

    Let me proceed backwards a moment as to this number of rounds, their final and decisive round on the fact of course is when you go to trial, you present your witnesses and then you have to put up your witnesses and there is the examination so forth.

    But in these cases there is a bite before that.

    As soon as this complaint is filed, you have all the discovery proceedings, you have the depositions and that has been specifically provided by the Congress in contrast with the little that’s provided about how this is to be tried out.

    Now the Government does not want to have yet a third earlier go-round, I should say a first followed by two more by filing an affidavit having the lawyer who prepared an affidavit within the department and who is not going to be a witness, hold in on deposition, taking up the time of personnel and — until it became a real problem.

    That was done in this case.

    You will find in the record a document which the attorney who verified this complaint had to file so that he wouldn’t be holding and have his time wasted by asking a virtual trial on the facts for which he was not the witness.

    And then after that when it is all over with, then to have another go around on depositions and discovery and then finally the other Act.

    That is the, as I understand it, is the real reason why the Government not being required to file an affidavit has put a stop to it —

    Felix Frankfurter:

    May I ask you —

    J.F. Bishop:

    — in many cases.

    Felix Frankfurter:

    — Mr. Bishop, may I ask whether and affidavit showing good cause therefore, does that mean anything more than a statement, does that mean they have set forth the evidence with any particularity?

    J.F. Bishop:

    The respondent —

    Felix Frankfurter:

    (Voice Overlap)

    J.F. Bishop:

    The respondent asks for that.

    There is of course a question —

    Felix Frankfurter:

    And I don’t — I don’t care what the respondent asks but I am —

    J.F. Bishop:

    My answer is of course not.

    Felix Frankfurter:

    No.

    I don’t — assuming —

    J.F. Bishop:

    Yes.

    Felix Frankfurter:

    Assuming the lower court decision is correct, what is called for in the affidavit?

    J.F. Bishop:

    There are laws —

    Felix Frankfurter:

    Any (Inaudible)

    J.F. Bishop:

    Yes.

    Felix Frankfurter:

    Administration of the case?

    J.F. Bishop:

    Yes.

    The lower court here spoke in a fashion that is very alarming if the Court should for find with the lower court, we would — I feel assuredly, possibly have a very extensive third go around on the facts.

    Felix Frankfurter:

    (Voice Overlap)

    J.F. Bishop:

    I want to — I’ll try to find that place.

    Felix Frankfurter:

    I might —

    J.F. Bishop:

    In page 18 where it says but the protection afforded by the requirement of an affidavit of good cause would be seriously impaired if the defendant in a denaturalization action could not examine it and test its sufficiency by motion before trial.

    Felix Frankfurter:

    But isn’t that all in the Court, is all I read about the great modern (Inaudible)or judicial proceeding, pretrial, all the cards on the table and all the rest of it?

    J.F. Bishop:

    Oh, we have that already with the discovery proceedings —

    Felix Frankfurter:

    Well, then what is —

    J.F. Bishop:

    — and the depositions.

    Felix Frankfurter:

    What is the difficulty about putting this in an affidavit?

    I don’t follow?

    J.F. Bishop:

    Administrative demands of very serious input.

    In other words, your first step then — this third step that I’m — that would be added —

    Felix Frankfurter:

    Well, I’m assuming that a U.S. Attorney before he begins a proceeding whether criminal justice, whether prosecution or denaturalization —

    J.F. Bishop:

    Yes.

    Felix Frankfurter:

    — proceedings of great weight and deep consequences to individuals involved as a case pretty well in hand.

    I’ll make that assumption about a U.S. Attorney.

    J.F. Bishop:

    May I interrupt one second?

    Felix Frankfurter:

    May I not — should I not make such an assumption?

    J.F. Bishop:

    We should not because very often the witnesses cannot be induced or required to make affidavits.

    As a matter of fact under this —

    Felix Frankfurter:

    I’m not talking about the witnesses but this is — the U.S. Attorney can make an affidavit on —

    J.F. Bishop:

    Yes.

    But he can only make it on the record.

    Felix Frankfurter:

    (Voice Overlap) — but when it comes to the actual trial subject to the all rules of evidence, this is the case we’re going to establish.

    Can’t I make that assumption, I should think I ought to.

    J.F. Bishop:

    That assumption could be made.

    Felix Frankfurter:

    Well, then what is the difficulty of an affidavit to that effect?

    J.F. Bishop:

    That the — you then have a person filing a document in a proceeding on which he can immediately be required to spend time to no good purpose which is duplicated in the discovery proceedings.

    Felix Frankfurter:

    Well, I (Inaudible)

    If our proceeding, judicial proceedings generally for one reason or another on many weren’t so laggard, do you think it would be disposed of as they are in English courts very quickly?So what is the — what is there about having the cards up your sleeves, I don’t follow (Voice Overlap) —

    J.F. Bishop:

    It isn’t a matter of having cards up your sleeve because as a matter of fact in this very case, if you will look at the verification in the — it was attached to this complaint.

    The attorney did say he had looked over the files and that was why this proceeding was being brought but the U.S. Attorney is not going to able to do more than that.

    Stanley Reed:

    Is the U.S.Attorney — does his affidavit satisfy the requirements as in here if he —

    J.F. Bishop:

    Of the —

    Stanley Reed:

    — filed an affidavit saying that he believes there’s good cause for it.

    J.F. Bishop:

    The court below —

    Stanley Reed:

    Without even knowing (Voice Overlap) —

    J.F. Bishop:

    The court below apparently did not consider it.

    The respondents do not.

    If you will examine the respondents —

    Stanley Reed:

    It has to be by a third party who knows the facts.

    J.F. Bishop:

    What’s that?

    Stanley Reed:

    It has to be by some third party who knows the facts.

    J.F. Bishop:

    That is certainly what they are contending.

    We don’t even — we don’t conceive that if the —

    Earl Warren:

    Why shouldn’t it be that way?

    J.F. Bishop:

    Because that’s a duplication of the discovery proceedings.

    Earl Warren:

    What good is an affidavit if it doesn’t demonstrate any facts?

    J.F. Bishop:

    Well our contention is that what would be required would be a third go around on the facts.

    He would have to put all the facts in there and —

    Earl Warren:

    But Congress didn’t —

    J.F. Bishop:

    — as a result of that it would be just duplicating the discovery proceedings.

    Earl Warren:

    But Congress didn’t say it was a — should be a third go around, it said it should be the first go around.

    J.F. Bishop:

    But that go around is added, if this affidavit is something in addition to the discovery proceeding, those are with us.

    Congress has — at least they’re in the rules, in the Federal Rules of Civil Procedure.

    And you — you have a person examined and you have time of government personnel taken which they can ill afford which has gotten to that nuisance stage.

    Earl Warren:

    Well, is the — is the time of the personnel to be compared with the procedural right of the person who’s about to lose his citizenship?

    J.F. Bishop:

    Not for an instant if he has that procedural right.

    But if he does not have that procedural right, the Government has thought that this is an end of a good thing and that what has been given not as a procedural right but as something thrown in is not going to be thrown in anymore.

    If we conceded that it were a procedural right, if it was the third, or the fourth, or the fifth go around we would not have a word to say about it.

    J.F. Bishop:

    But we say first that the right is not given.

    As I understand the question from the Court, well, why don’t you give it to him anyways, there’s so much to it, the answer is there’s enough to it, to make it stop doing what we don’t — what we are not required to do under the statute.

    Hugo L. Black:

    How did you start?

    J.F. Bishop:

    A great number of reasons.

    Perhaps the best demonstration of it I would say is that in the appendix that we threw here, the U.S. Attorney rather than looking up to statutory things, says, send us an affidavit, it’s forwarded on, say yes, send us an affidavit, and they put in the affidavit.

    I would be inclined to do that in many cases myself rather than to go into a question which is surely one more element of litigation, one more round of having someone subpoenaed in to answer questions which are not of any great help to the proceedings.

    Felix Frankfurter:

    Am I to infer from what you’ve said that this — this furnishing of affidavit towards laxity, slipped into by the U.S. Attorney, the Attorney General, Attorney General Bonaparte who’s a very charming and easy-going man —

    J.F. Bishop:

    I didn’t know Attorney General Bonaparte.

    I’m not speaking of him.

    Felix Frankfurter:

    Well, but — but —

    J.F. Bishop:

    I’m —

    Felix Frankfurter:

    — if this follow until — for years, they’ve — they acted on his opinions.

    Do I infer that they were disclosed a great (Inaudible) of legal proceeding as a result of the practice, the right to your wrong pursuit according to your views (Inaudible)

    Was there any — is there any experience to show that that really bog down denaturalization proceedings?

    J.F. Bishop:

    I wouldn’t know because it wouldn’t be pertinent to my argument.

    My argument is they don’t have to do it.

    The question is only why don’t they do it as a matter of generosity?

    Felix Frankfurter:

    No.

    J.F. Bishop:

    Well, at times they’ll mend themselves to generosity.

    Felix Frankfurter:

    That isn’t my — that isn’t my — it is clear into your argument, so that in part your argument was — is that this is an undue retardation, undue delay, it’s a nuisance without corresponding benefits required of special argument to try on factual grounds, isn’t it?

    J.F. Bishop:

    No.

    Felix Frankfurter:

    But call it a third round then, that’s a shorter phrase.

    It’s a better English word.

    J.F. Bishop:

    I say that it is a third round but I say that in answer to the question, why don’t you do it free?

    I don’t say it in answer to the question why do you have to do it?

    I say that we don’t — that it’s not in the statute.

    Felix Frankfurter:

    I — I’d follow your argument —

    J.F. Bishop:

    Yes.

    Felix Frankfurter:

    — on that score.

    I understand that.

    Felix Frankfurter:

    But you mean the suggestion from the bench with some show of sympathy toward the requirement, I say it would add a needless what you call a third round, it would — it would needlessly harbor proceedings, isn’t that — wasn’t that one of your contentions?

    J.F. Bishop:

    I — I would say that it puts demands on personnel.

    Felix Frankfurter:

    Therefore I asked — therefore I asked whether during the years when gratuitous and without the requirement of law, affidavits were filed but the experience show that they did harbor these proceedings.

    J.F. Bishop:

    Yes.

    Felix Frankfurter:

    What is the (Inaudible)

    J.F. Bishop:

    That’s why they stopped.

    Felix Frankfurter:

    What is the —

    J.F. Bishop:

    I have just recited what has been told to me that they haul in the attorneys that make the verifications and try to make witnesses out of them when they’re not witnesses.

    They only retell the facts which —

    Felix Frankfurter:

    (Voice Overlap) —

    J.F. Bishop:

    — will be brought —

    Felix Frankfurter:

    (Inaudible)

    J.F. Bishop:

    They try to — they try to subpoena the U.S. Attorney here.

    And this — and this document —

    Felix Frankfurter:

    What happened?

    Just tell us the great consequence that happened from that.

    J.F. Bishop:

    He had to —

    Felix Frankfurter:

    He even had to show these and I’m not (Inaudible) the witness.

    J.F. Bishop:

    He filed — he had to file yet another document.

    When those are multiplied by thousands there’s an end to all good things.

    Earl Warren:

    By thousands, may I ask you this Mr. Bishop?

    Do you know how many denaturalization proceedings there were in the country on the average each year up to I’ll say the last few years?

    J.F. Bishop:

    I do not.

    Earl Warren:

    Could you find that for us and let us tomorrow morning, I have to — be interesting to know.

    Stanley Reed:

    Mr. Bishop, in the — you pointed out the (Inaudible) case here, the practice of the party on that and that is that they followed the (Inaudible) case some years after that.

    The department had — did the department at that time have regulations or suggestions that were issued to United States Attorney directing him how to proceed or (Inaudible)

    J.F. Bishop:

    I am not acquainted with that.

    Stanley Reed:

    At — at the present time, how do the United States Attorneys know not to — that is necessary?

    J.F. Bishop:

    By their instructions of which I have seen them —

    From the — from the standpoint of a department.

    J.F. Bishop:

    — including for instance there was a formal memorandum that I’m familiar with which cited Schwinn and told them when it’s — when it will assist the Government, when it will assist the expediting of it, file the affidavit —

    Stanley Reed:

    You — you don’t have the —

    J.F. Bishop:

    — but otherwise you do not have to.

    Stanley Reed:

    Don’t you have regulations that the Department of Justice for conduct of the business of the United States Attorney’s Office?

    J.F. Bishop:

    The United States Attorney’s manual, you refer to?

    I don’t know whether that is interdepartmental matter but I do recall — I think I am allowed to say this much that I did check that manual to see what was said about it and I found nothing requiring it.

    And in the light of this earlier memorandum specifically on the subject I found a definite instruction that it was not required under the law.

    They had the legal lights exploring it and that they didn’t have to do it unless they were ordered to.

    Stanley Reed:

    But the —

    Sherman Minton:

    May this be considered a shield for the district attorney who may be importuned to bring a lot of unwarranted cases?

    J.F. Bishop:

    Clearly, that was the — that was the object.

    I think it shows the — it shows itself to be that right on the language and in the legislative history which on — (Inaudible) I don’t see me even able to reach unless I’m given some more time.

    It’s very clear.

    Our brief has — has lined up the legislative history and I wanted to reserve some time to clarify what as — what maybe raised.

    I will, therefore, would like to stop now —

    Earl Warren:

    I may —

    Felix Frankfurter:

    Could you say that sentence — could you say that sentence what the legislative history shows explicit on the question of the affidavit?

    J.F. Bishop:

    Yes.

    Felix Frankfurter:

    Just state it —

    J.F. Bishop:

    Five bills before this 1906 Congress under which citizens were to be allowed to be petitioners in these proceedings, specifically again the report of the — this is all in the brief, specifically again the report in which the committee specifically said it had adverted to those bills.

    It did not say that it had taken this or that provision out of it but it had considered that.

    Specifically again and this is the big whole of the decision below, after 15442, which is the forerunner was reported out, it was changed, it was changed in several respects but what — it was changed for instance to cut out venue in the original naturalizing part and to have it only in the part of residence.

    But in addition to that the language was changed before that it had said the United States, this is in our brief, it’s set off in the margin, before that it had said the United States shall have power upon affidavit of any credible person to — I think it goes on to institute proceedings.

    Then that was changed without any explanation except as we find clear explanation in the pressure of five bills to read it shall be the duty of the United States Attorney upon affidavit duly filed.

    Now, this opinion below goes up to the point of quoting the language about power upon an affidavit and stops and never goes on to this very significant and crucial change, said not a word about it and that’s the end of it.

    It does not, it didn’t take the trouble and for that I am bitter because of the day labor involved of reading those bills to which the committee adverted and seeing the substantial pressure of bills which wanted the private citizens to get in there because there had been distrust of the U.S. Attorneys, that’s in the — I say in the brief, that’s a lengthy and a hard process and has to be lengthily reviewed but if that will be considered, it will give the explanation of the change.

    Now, may — just one caveat, the respondent has hypothesized other reasons for making that change but not one of those hypotheses is supported by anything like five bills which show the pressure to let the outsiders into the picture —

    Sherman Minton:

    When you’re getting —

    J.F. Bishop:

    — the force of the act.

    Sherman Minton:

    When you are getting the data on how many suits have been filed for denaturalization, would be possible for you to get the information as to how many superheated patriots asked that these kind of proceedings be brought that weren’t brought?

    J.F. Bishop:

    Well, if they didn’t present an affidavit, this would stop on them, and that’s exactly what it’s for.

    I would like to reserve any time I have left.

    Earl Warren:

    You may.

    J.F. Bishop:

    I’m sorry, I can’t go into the legislative history.

    Earl Warren:

    You may have it.

    Mr. Judd, we won’t ask you to start now, the time is up.

    Orrin G. Judd:

    All right.

    (Inaudible)